Electronically Filed

1/29/2024 4:18 PM
Steven D.Grierson
CLERK OF THE COURT
1
MDSM
2 MONTI JORDANA LEVY, ESQ.
Nevada Bar No. 8158
3 WRIGHT MARSH & LEVY
300 S. Fourth St., Ste. 701
Las Vegas, Nevada 89101
(702) 382—4004
5 m1evy@wmllaw1v.com
Attorney for Defendant
6 EILEEN RICE
DISTRICT COURT
7[
CLARK COUNTY, NEVADA
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STATE OF NEVADA,
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Plaintiff,
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vs. ) CASE NO. : C—23—379122—6
11 ) DEPT. NO.: XVIII
EILEEN RICE,
12 ) HEARING REQUESTED

13 Defendant.

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MOTION TO DISMISS
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COMES NOW, Defendant EILEEN RICE, by and through her
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attorney, MONTI JORDANA LEVY, ESQ., of WRIGHT MARSH & LEVY, and
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hereby moves this court for an order dismissing the case as the
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Grand Jury empaneled by the Eighth Judicial District Court,
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Clark County Nevada, lacked jurisdiction to return a True Bill
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in the above entitled case and the venue is improper.
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This Motion is made and based on the papers and pleadings
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on file, the Memorandum of Points and Authorities attached
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hereto, and argument of counsel at the hearing on this matter.
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Dated this 29 day of January, 2024.

/s/ Monti Jordana Levy

26 MONTI JORDANA LEVY, ESQ.
Nevada Bar No. 8158
27 WRIGHT MARSH & LEVY
300 5. Fourth St., Ste. 701
28 Las Vegas, Nevada 89101
(702) 382—4004
Attorney for Defendant
EILEEN RICE

Case Number: C-23-379122-6

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2 NOTICE OF MOTION

3 TO: THE STATE OF NEVADA, Plaintiff:

4 PLEASE TAKE NOTICE that the undersigned will bring the

5 foregoing MOTION TO DISMISS on for hearing before the above-

6 entitled Court on the day of , 2024, at the

7 hour of a.m./p.m., or as soon thereafter as counsel may be

8 heard on this matter.

9 DATED this 29th day of January, 2024.

10
/s/ Monti Jordana Levy
11 MONTI JORDANA LEVY, ESQ.
Nevada Bar No. 8158
12 WRIGHT MARSH & LEVY
300 S. Fourth St., Ste. 701
13 Las Vegas, Nevada 89101
(702) 382—4004
14 m1evy@wml1aw1v.com
Attorney for Defendant
15 EILEEN RICE

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 1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INDTRODUCTION

3 Eileen Rice (“Ms. Rice”) is charged with two felony offenses

4 in the above entitled court for conduct which took place wholly

5 in other counties. Because Clark County is not the appropriate

6 venue to hear the charges, the Clark County Grand Jury lacked the

7 authority to return a True Bill in this case; therefore, Ms. Rice

8 respectfully requests that the charges be dismissed.

9 II. PROCEDURAL HISTORY

10 On December 6, 2023, the State of Nevada through its

11 Attorney General, Aaron D. Ford, filed an Indictment in this

12 court charging Ms. Rice along with Michael James McDonald (“Mr.

13 McDonald”), James Walter DeGraffenreid III, (“Mr.

14 DeGraffenreid”), Jesse Reed Law (“Mr. Law”), Durward James Hindle

15 III (“Mr. Hindle”), and Shawn Michael Meehan (“Mr. Meehan”) with

16 one count of Offering False Instrument for Filing or Record, and

17 one count of Uttering Forged Instruments: Forgery.

18 The Indictment was filed pursuant to a True Bill returned by

19 the Grand Jury empaneled in the Clark County District Court on

20 December 5, 2023, following testimony the Grand Jury received on

21 November 14, 2023, November 28, 2023, and December 5, 2023.

22 On December 18, 2023, all six defendants appeared in this

23 Court via audio/visual transmission and entered pleas of “Not

24 Guilty.” All six defendants waived their right to a speedy

25 trial, and trial is set to commence on March 11, 2024.

26 III. STATEMENT OF FACTS

27 The Indictment alleges in count I that on or between

28 December 8, 2020 through December 22, 2020, within the County of

 1 Clark, State of Nevada, the defendants knowingly offered a false

2 or forged instrument titled, “CERTIFICATE OF THE VOTES OF THE

3 2020 ELECTORS FROM NEVADA” to be filed, registered or recorded in

4 the office of the President of the United States Senate, and/or

5 the Archivist of the United States, and/or the Nevada Secretary

6 of State, and/or the Chief Judge of the District Court for the

7 District of Nevada by either directly committing the offense,

8 and/or pursuant to a conspiracy to commit the offense.

9 Count II alleges that the defendants uttered, offered,

10 disposed of or put off as true a forged writing, instrument or

other thing titled, “CERTIFICATE OF THE VOTES OF THE 2020

12 ELECTORS FROM NEVADA” to the President of the United States

13 Senate, and/or the Archivist of the United States, and/or the

14 Nevada Secretary of State, and/or the Chief Judge of the District

15 Court for the District of Nevada, with the intent to defraud, by

16 either directly committing the offense or pursuant to a

17 conspiracy to commit the offense.

18 According to the testimony and exhibits presented before the

19 Grand Jury, Ms. Rice is a resident of Douglas County, Nevada. On

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20 or about the day of December, 2020, the defendants met in

21 Carson City, Nevada, and signed ballots as Republican electors

22 for Donald Trump and Michael Pence. These documents were mailed

23 from Douglas County, Nevada to the Archivist in Washington D.C.,

24 the Chief Judge of the United States District Court in Las Vegas,

25 Nevada, the Secretary of State in Carson City, Nevada, and the

26 President of the United States Senate in Washington D.C. with a

27 return address for Michael McDonald in Las Vegas, Nevada. While

28 the letters all contained a return address for Mr. McDonald in

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 1 Las Vegas, Nevada, the letters were actually mailed from the

2 post-office located in Minden, Nevada, which is in Douglas

3 County. The signing and mailing of the documents all occurred

4 outside of Clark County, Nevada.

5 IV. ARGUNENT

6 A. THE GRAND JURY EMPANELED IN AND FOR THE COUNTY OF CLARK

LACKED JURISDICTION TO RETURN A TRUE BILL IN THIS CASE
7!
NRS 172.105 provides:
8.
The grand jury may inquire into all
9 public offenses triable in the district
court or in a Justice Court, committed
10 within the territorial jurisdiction of
the district court for which it is
11 impaneled.

12 The Nevada Supreme Court has held that the term “territorial

13 jurisdiction” is a term of art that incorporates state statutes

14 governing venue and, thus, the statute empowers a grand jury to

15 inquire into an offense so long as the district court that

16 empaneled the grand jury may appropriately adjudicate the

17 defendant’s guilt for that particular offense. Martinez Cuzman

18 v. Second Judicial District Court in and for County of Washoe,

19 136 Nev. 103,460 P.3d 443 (2020) . In other words, the grand jury

20 for each district can only investigate and return true bills for

21 cases where venue is proper under the Nevada statutes in the

22 district wherein it is empaneled.

23 Because the alleged offenses here occurred in either Carson

24 City (where the documents were executed) or in Douglas County

25 . (where the documents were mailed), the offenses are triable only

26 within one of those two judicial districts pursuant to Nevada’s

27 venue statute (see subsection B below) . The grand jury that heard

28 evidence and returned a true bill in this case is ernpaneled

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 1 by the Eighth Judicial District Court and can only hear cases

2 triable within Clark County.

3 B. VENUE IS IMPROPER IN CLARK COUNTY AS ANY ACTS WHICH COULD

CONSTITUTE THE OFFENSES ALLEGED IN THIS CASE OCCURRED IN
4 OTHER JURISDICTIONS

5 NRS 171.030 provides:

6 When a public offense is committed in

part in one county and in part in
7 another or the acts or effects thereof
constituting or requisite to the
8 consummation of the offense occur in two
or more counties, the venue is in either
9 county.

10 The Nevada Legislature has carved out additional venue

11 provisions for certain offenses’; however the crimes with which

12 Ms. Rice is charged do not fit into any of those statutes.

13 When no specific venue statute applies for the offense

14 charged, the general rule is that “‘each county will have

15 independent jurisdiction over a criminal offender for the conduct

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‘For example: NRS 200.540 provides in part,”Every person
publishing a libel in this state may be proceeded against in any
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county where such libelous matter was published or circulated”;
19 NRS 205.08345 provides in part, “In any prosecution for a violation
of this section, the violation shall be deemed to have been
20 committed and may be prosecuted in any jurisdiction in this State
in which any theft committed by any participant in the organized
21 retail theft was committed, regardless of whether the defendant was
ever physically present in that jurisdiction”; NRS 171.060 states
22 in part, “When property taken in one county by burglary, robbery,
larceny or embezzlement has been brought into another, the venue of
23 the offense is in either county;” NRS 205.060 provides in part,
“Whenever any burglary pursuant to this section is committed on a
24 vessel, vehicle, vehicle trailer, semitrailer, house trailer,
airplane, glider, boat or railroad car, in motion or in rest, in
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this State, and it cannot with reasonable certainty be ascertained
in what county the crime was committed, the offender may be
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arrested and tried in any county through which the vessel, vehicle,
27 vehicle trailer, semitrailer, house trailer, airplane, glider, boat
or railroad car traveled during the time the burglary was
28 committed.”

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 _______________________

1 occurring in that county.’” Martinez Guzman v. Second Judicial

2 District Court, 137 Nev. 599, 602, 496 P.3d 572,575 (2021)

3 quoting Zebe v. State, 112 Nev. 1482, 1484—85, 929 P.2d 927, 929

4 (1996) . Because there is no specific venue statutes for the

5 offenses charged in this case, the general rule applies.

6 Here, the documents that are the subject of the charges were

7 executed in Carson City and mailed from Douglas County, the fact

8 that a return address for Las Vegas was used or that one of the

9 documents was mistakenly mailed to an address in Las Vegas2, does

10 not change the fact that all of the acts constituting the alleged

11 offenses took place outside of Clark County.

12 In State v. Pray, the Nevada Supreme Court held that while

13 the crime of larceny is an exception to the common law rule that

14 an indictment must be found in the county where the crime was

15 committed, in the absence of a specific venue statute, the venue

16 for the crime of receiving stolen goods is in the county where

17 they are received, and not in the county where they are stolen,

18 nor the one to which they are subsequently taken. State v. Pray,

19 30 Nev. 206, 94 p. 218 (1908) (overruled on other grounds). Like

20 in Pray where the offense was consummated when the goods were

21 received with the unlawful intent specified in the statute, here,

22 any offense was consummated when the documents were mailed from

23 Douglas County. No acts took place in Clark County; therefore,

24 venue for these alleged offenses under NRS 171.030 would be in

25 either Carson City or Douglas County.

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27 2Chief U.S. District Court Judge Miranda M. Du is actually

located in Reno Nevada at 400 S. Virginia Street, Reno, Nevada
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89501 not at the Las Vegas Courthouse.

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 _____ _____

1 “Neither formation of intent alone nor preparatory acts

2 alone are sufficient to make venue proper in a charging county.”

3 Martinez Guzman, 137 Nev. at 603, 496 P.3d at 576. Even if the

4 State could show that intent or a preparatory act was committed

5 in Clark County, the offenses were committed outside of Clark

6 County; therefore, venue here is improper.

7 C. MS. RICE IS ENTITLED TO HAVE THE JURY POOL FROM THE LOCATION
WHERE THE OFFENSE IS ALLEGED TO HAVE TAKEN PLACE UNDER THE
8 SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

9 The constitutional guarantee of a fair trial includes the

10 right to “an impartial jury of the State and district wherein the

11 crime shall have been committed.” U.S. Const. amend. VI. This

12 provision in the constitution is the Vicinage Clause, which is a

13 separate right from the Venue Clause, which is found in Article

14 III, §2, cl.3. See, Smith v. United States, 599 U.S.

15 (2023), see also, The Place of Trial of Criminal Cases:

16 Constitutional Vicinage and Venue, 43 Mich. L. Rev. 59 (1944)

17 The venue is the place where the trial is to be held, which is

18 separate from the vicinage, which is the place from where jurors

19 are to be drawn. See, A Jury of Your Peers: Venue, Vicinage, and

20 Buffer Juries, The Jury Expert, 20 (3), 49-52 (September 2008)

21 See also, Smith v. United States, 599 U.S. (2023) . In

22 Smith, the United States Supreme Court stated that the Vincinage

23 Clause:

24 ‘Reinforce[s]’ the coverage of the Venue

Clause because, in protecting the right
25 to a jury drawn from the place where a
crime occurred, it functionally
26 prescribes the place where a trial must
be held.
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Smith, 599 U.S. (2023)
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 1 The Court explained that the Vicinage Clause differs from

2 Venue because it concerns the jury composition, not the place

3 where the trial should be and it specifies that the jury must be

4 drawn from ‘the State and district where the crime shall have

5 been committed.” Smith, 599 U.S. (2023) (Emphasis in

6 original)

7 In order for Ms. Rice to have a fair trial by a jury of her

8 peers as guaranteed by the Sixth Amendment, the trial (and thus

9 where the jury pool is drawn) must take place in either Carson

10 City (First Judicial District Court) or Douglas County (Ninth

11 Judicial District Court) . Ms. Rice has no connection to Clark

12 County, Nevada, and there is no cognizable reason why she should

13 be tried here.

14 Although in State v. Steward, 74 Nev. 65, 323 P.2d 23

15 (1958), the Nevada Supreme Court held that there is no

16 constitutional guarantee in the Nevada Constitution that a crime

17 be tried in the county or territorial jurisdiction within which

18 the offense was committed, its holding is limited to whether or

19 not venue or in transitu statutes violate the state constitution.

20 That case did not hold that any court in Nevada has jurisdiction

21 over any offense occurring outside its district. Nevada’s venue

22 statute provides in this case that venue (and vicinage) are

23 proper in either Carson City or Douglas County.

24 V. CONCLUSION

25 Because the Clark County Grand Jury only has the power to

26 hear cases triable in its court, it lacked jurisdiction to return

27 a true bill in this case. Further, the alleged offenses were

28 complete upon the mailing of the documents in Douglas County, and

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 1 the documents were executed in Carson City; therefore, venue is

2 :°Y proper in one of those two districts. Additionally, Ms.

3 Rice would be denied a trial by her peers as guaranteed in the

4 United States Constitution if she were subjected to trial in

5 Clark County. Ms. Rice respectfully requests that this Honorable

6 Court grant her motion to dismiss.

7 Respectfully Submitted,

8 /s/ Monti Jordana Levy

MONTI JORDANA LEVY, ESQ.
9 Nevada Bar No. 8158
WRIGHT MARSH & LEVY
10 300 S. Fourth St., Ste. 701
Las Vegas, Nevada 89101
11 (702) 382—4004
mlevy@wmllawlv.com
12 Attorney for Defendant
EILEEN RICE
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